1. JOB DESCRIPTIONS: A Key HR Tool
Presented by: Trisha Gibo, Esq. Shareen Poynter Arlene Odagiri July 2017

2. What’s in your Tool Kit?

3. DISCLAIMER This document has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult and attorney if you have specific legal issues.

4. Overview Why job descriptions? Why are they important?
What must job descriptions contain?
Creating a job description
How to use a job description
Keeping job descriptions current
Check your Tool Kit

5. Why job descriptions
No State or Federal law states a job description is required, but . . .
Difficult for employers to defend employment decisions without one.
Proving employment decisions are based on “bona fide occupational qualifications” and/or “legitimate, nondiscriminatory business reasons.”
ADA requires employers to provide “reasonable accommodation” to enable disabled individuals to perform their essential job functions.
Hawaii: Accommodation process cannot be accomplished without a written job description.
Since the enactment of federal and state discrimination laws, it has become increasingly difficult for employers to defend employment decisions.
Juries do not believe employers absent written proof that the employment decisions are based on "bona fide occupational qualifications" and/or "legitimate, nondiscriminatory business reasons."
The adoption of the ADA has further complicated the situation by requiring employers to provide "reasonable accommodation" to enable disabled individuals to perform their essential job functions.
Under Hawaii's disability discrimination regulations, this accommodation process cannot be accomplished without a written job description.

6. Why are they important? Describes purpose of the job
Documents legitimate business reasons
Required for medical examinations
Describes legitimate minimum qualifications

7. Why are they important? Describes purpose of the job
Helps identify the right candidate for the job
Helps identify the skills or abilities needed for the position and conditions that apply to the position
Tells the applicant what the position may involve or require
An applicant may decide if they are a good fit or not
If the application is withdrawn, no liability for “adverse action”

8. Why are they important? Documents legitimate business reasons
Job descriptions serve as a starting point for essential job duties
Applicant or employee can identify and determine their “fit”
Job descriptions can help with the interactive process to meet State/Federal law requirements for reasonable accommodations for qualified individuals

9. Why are they important? Required for Medical Examinations
Job descriptions can also be helpful in soliciting advice of professionals such as physicians, chiropractors, counselors or rehabilitation therapists to determine if an employee can perform tasks for a particular job

10. Why are they important? Describes legitimate minimum qualifications
Should specify if particular certifications are required
Particular degree, or
Professional designation
Company culture
Fit for department
Supports values

11. What must job descriptions contain?
Essential job functions
Physical requirements of the job
Mental requirements of the job
Education, work experience and/or skill requirements for the job
Equipment that will be used
Work environment

12. Use of job analysis to create job descriptions
Job analysis is used to identify knowledge, skills and expertise required to effectively perform:
Job assignments
Establish criteria for selection and promotions
Design objectives for training and development programs
Develop standards for measurement of performance
Assist with determination of pay classification levels

13. Creating job descriptions
What to include in a job description:
Title
FLSA status
Essential functions
Physical and mental demands
Skills and qualifications
Work environment
Disclaimer

14. Creating job descriptions
Assign a job title to the position
Use a title that describes the basic function of the position in your company (e.g., receptionist, secretary, accounting manager). Remember, however, that a job description should describe the duties that must be performed by anyone who holds the position, not the duties performed by a particular person.
Answers a business need — and is not made-to-order for a specific individual!

15. Exempt or Non-Exempt
If notation of Exempt or Non-Exempt is stated, elements of applicable exemption must be present in the job description
Determine if position is Exempt or Non-Exempt based on FLSA criteria
To be exempt from minimum wage, timekeeping and overtime requirements:
Example: Executive exemption
State the position (1) manages a “recognized department or subdivision of the company” and (2) regularly supervises at least 2 or more full-time equivalent employees every week.
Also, reference to other managerial duties should be made in the job description.

16. Exempt or Non-Exempt
To be exempt from minimum wage, timekeeping and overtime requirements:
Example: Administrative exemption
State the position “regularly exercises independent judgement and discretion about matters of significance.”
Use specific words to describe that involve independent judgement and discretion, such as “negotiates” or “decides.”

17. Creating job descriptions
Job duties
Determines who is responsible for a given task that is essential to the organization
Prepare written job descriptions
Make them comprehensive
Make them accurate
Make them useful

18. Creating job descriptions
List the essential functions of the job
The essential functions of a job include the duties which are:
the reason the position was created;
regularly performed by the person who holds the position; and/or
a significant percentage of all the duties performed by the employee.
Use specific and descriptive phrases rather than general language. For example:
General statement: “responsible for repair of computer equipment”
More precise and descriptive: “contacts computer service repair companies and coordinates repairs of computer equipment”
Seek input from employees as well as supervisors to ensure that the duties listed on the job description are actually performed by the incumbent employees in the position.

19. Establishing essential job functions
Factors that may be considered:
Whether the position exists to perform a particular function;
The number of other employees available to perform that job function, or the number of employees among whom the performance of the job function can be distributed;
The degree of expertise or skill required to perform the function;
The amount of time spent performing the function;
The terms of a collective bargaining agreement;
The work experience of incumbents or past employees in the job;
The consequences of not requiring the incumbent to perform the function; and
The employer's judgment.

20. Creating job descriptions
Describe the physical and mental requirements of each job
To minimize the risks of disability discrimination claims, these physical and mental functions must be listed on the job description.
Review the EEOC’s regulations and guidelines on "disability" for ideas on the types of physical and mental functions that should be addressed in a job description.
Each job requires an employee to be able to perform certain physical functions.
Examples: sitting, walking, lifting, eye-hand coordination
Each job requires an employee to be able to perform certain mental functions
Examples: reading, verbal or written communication, math calculations, withstanding moderate amounts of stress, attention to detail, working with others

21. Creating job descriptions
List any special requirements for the job
Special requirements should be listed on the job description. For example:
Educational degrees
Professional licenses
Work experience, and/or specialized skills.
Required certification such as:
Commercial driver’s license
Specialized degree, or
Professional designation
Required specific computer programs or systems

22. Creating job descriptions
Include descriptions of work environment and equipment
Description of the work environment. For example:
Information on whether the person will work indoors or outdoors,
In heat or cold, or
In clean or dirty, or
In hazardous conditions.
Description of equipment. For example:
Computers
Telephones
Copy machines
Operate a vehicle (i.e., forklift, machinery)
Provides applicants and employees with a more "concrete" understanding of what they will be expected to do.

23. Creating job descriptions
List required work habits
Work habits include regular attendance, teamwork, initiative, dependability, promptness, etc. If it is important for an employee to have one or more of these work habits in order to perform the job, then they should be listed on the job description as well.
Examples:
Must be able to work collaboratively with others in an open space environment.
Must be able to work independently with limited direction and human interaction.
Must be able to manage and complete multiple tasks within assigned working hours.

24. Creating job descriptions
Include a summary of non-essential functions
Non-essential functions are those tasks an employee must be able to perform occasionally or on an intermittent, non-regular basis.
In this section the EEOC suggests you can require an employee to "perform any other duties and/or tasks that may be assigned to him/her on an as needed basis."

25. Creating job descriptions
Include a disclaimer, if appropriate
Many employers are reluctant to adopt job descriptions for fear that employees will treat such documents as employment agreements. A disclaimer, clearly and conspicuously set forth in the job description, should counter any attempt by an employee to claim the job description is a contract.
Include the following language at the bottom of the job description: “This job description is not an employment agreement or contract. Management has the exclusive right to alter this job description at any time without notice.”

26. Creating Job Descriptions
Resources to help you prepare job descriptions
Business or professional organizations
Government websites (Dictionary of Occupational Titles)
Consultants (SHRM Hawaii Vendor Directory)
Ask your HR friends

27. Using job descriptions
How do you use job descriptions?
Guide your questions when recruiting & selecting new employees
Focus training & performance evaluations
Determine compensation levels & appropriateness of rewards
Determine whether discipline and/or discharge is appropriate
Job Descriptions
Recruitment & Selection
Training & Evaluation
Compensation & Rewards
Discipline & Discharge

28. Using job descriptions
Other benefits of job descriptions:
Focuses decision-making for managers and supervisors
Communicates job requirements to employees
Provides documentation for your legitimate, non-discriminatory business reasons

29. Using job descriptions
Supports an HR strategy and a company-wide strategy
If your job descriptions are done carefully and thoroughly, you should be able to use them to organize your entire human resources system. Employees should be hired, trained, evaluated, compensation, promoted, counseled, disciplined, and/or terminated on the basis of their ability to meet and perform the requirements listed on the job description. Job descriptions become valuable evidence which can be used to corroborate management's decisions.
Again, essential tool to select and retain the right employees for the Company.

30. Using job descriptions
Termination
Discipline
Promotion
Evaluation
Compensation
Assignments
Training
Hiring
Job
Description

31. Establish a process to keep job descriptions current
Opportunities to review:
When an employee leaves the Company
Hiring for same position or new or change
Elimination of position – affect on other positions
When it is time for performance reviews
When it is time for compensation reviews
Creation of a new position or operational change

32. Check your tool kit
___ Review your process of hiring new employees or filling a newly created position. Is there a current, realistic, and useful job description (JD)? ____ Does the JD need to be updated? ____ Which JD does not exist and needs to be created? ____ Is the JD reviewed prior to recruiting for an open position? ____ Are interview questions aligned with the JD? ____ Is the JD part of the performance review? Part of training and development programs? Part of the compensation plan? It is not just about having a “tool.” It is all about having the right tool and using it!

33. Questions?
Thank you for your time and interest !